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Book review: Public rights – Copyright’s Public Domains

What is the public domain? We know “of” it, but do we know exactly what it is made of or where to find it in the law? We certainly could not define it as simply (if at all) as we could list, off the top of our heads, the main exclusive rights of copyright. Yet we tend to agree that a healthy public domain is necessary. We also tend to agree that the public domain is the ‘other side of the coin’ that holds the copyright framework together. So why is the public domain underrepresented in statutes or in textbooks? Why not give it the attention it deserves with a book? This is the task that Graham Greenleaf and David Lindsay have set for themselves in their book,Public rights – Copyright’s Public Domains.

Instead of describing where copyright ends, Greenleaf and Lindsay describe where public domains begin. They do so by referring to what they call “public rights”, i.e. all the rights according to which users can use and enjoy copyright content freely, which they argue form the substance of public domains in law. This approach goes against traditional accounts of copyright law, which let the readers work out for themselves what rights users enjoy on the basis of what protected authors can and cannot enforce by law.

The authors take the realist view that reform is not necessary to improve the position of the public domains within copyright law. All we need to do, they argue, is to think about public domains as a set of positive “rights” in their own name instead of defining them in negative terms. In doing, perhaps we will see more policies at the national level which are as conscious of the public domains as the law has been of owners’ exclusive rights.

Why the plural in “public domains” you ask? The answer: for two main reasons. First, the public domain under copyright law is protean, existing through a complex web of authorized uses (which Greenleaf and Lindsay call “public rights”). The authors define the public domain as the collection of public rights which allow the public to “use works on equal terms without seeking permission” (p. 41). Referring to “public domains” in the plural thus accounts for the many forms that the public domain assumes in practice.

Second, the book addresses public domains from a comparative perspective. As such, the book covers “public rights” as prescribed by international copyright and neighbouring treaties as well as various domestic laws. Australia, the United Kingdom, the United States, France, Germany, and China, are the countries more often cited in the body of Greenleaf and Lindsay’s commentary, but the book makes reference to another 33 jurisdictions [by this Kat’s count]. So yes, “public domains” in the plural is most appropriate.

The authors have structured the book around the “public rights” that they identify as allowing the public to use a work without permission. With this “definition” in mind, the authors chart a list of 15 public rights (which we have compressed into 13 categories of rights below), defined as per their legal basis:

1.Works failing minimum requirements [This category includes uses of works that may not be fixed, where fixation is required by law]

2.Works impliedly excluded [This category includes uses of works that do not fit in the pre-established list of protectable copyright works]

3.Works expressly excluded [This category includes works that have been expressly excluded by law. They are rare within national laws, but the Berne Convention’s exclusion of ‘news of the day’ is one example]

4.Constitutional and related exclusions and exceptions [This category refers to uses of works that are allowed on the basis of constitutional rights or limitations, such as the freedom of expression or other human rights. It is particularly relevant in the US, where the Copyright Clause enjoys a constitutional basis, but the EU and the European Court of Human Rights have developed a similar jurisprudence with reference to international texts on human rights]

5.Works in which copyright has expired [Self-explanatory!]

6.Public domain dedications [Ever heard of these? They are rare but they do exist, the authors explain. Some countries make provision for the relinquishment of copyright, such as in Chile, Kenya or India.]

7.Public policy refusal against enforcement [This category covers uses of works allowed on the basis that copyright protection in the work may not be enforced due to its content. Once used to deny protection to immoral, obscene or blasphemous works, enforcement has been refused on the basis of ‘public policy’ in more recent jurisprudence. Think of the Glyn and Spycatcher cases in the UK. In China, works which contravene legislation will be denied protection]

8.Public interest defence to enforcement [This category includes uses that would be allowed in court because it would be against the public interest. E.g., denying the use of a work that would be contrary to a protected human right or a state policy]

9.Insubstantial parts [Again, self-explanatory; users have a right to use small parts of protected works]

10.Ideas or facts [Users may freely use and reproduce any content that amounts to mere facts or ideas]

11.Uses outside exclusive rights [Self-explanatory!]

12.Use granted by the rightsholders via statutory or voluntary [i.e. dedication of the work to the public domain by the author him/herself] licencing

13.De facto public domain of benign use [This refers to uses of protected content going unchallenged by rights owners either because they do not mind, or because the use is done according to other conventions, alternative to copyright. The authors describe how uses of works in the de facto public domains have significantly increased with the internet and digital technologies that have changed the culture around use and re-use by making tracking and suing virtually impossible in most cases. Readers might recall a similar distinction between de jure and de facto public domains in patent law describe by the authors of the‘Study on Patents and the Public Domain’ (2013) published by WIPO.]

The book can be described as a one-stop-shop on the topic of public domains in copyright law, because it reviews the law of various countries, ongoing efforts of reforms and the academic literature on this subject. As such, it is a must-read for any scholars (in the law or else) working on this question. The clarity of writing and the comprehensiveness of the book makes it accessible to undergraduate and postgraduate students in law, media studies and cultural studies. The book will be less useful to practitioners.

While the book does not attempt to deliver the equivalent for public rights that Copinger and Stokes on Copyright and Nimmer on Copyright do for copyright, both in terms of the jurisdictions that it covers and the scope of the sources that it consults, it is not far off. Totalling just over 600 pages, the book offers a copious read!

2 comments:

I would quibble with the statement "5. Works in which copyright has expired [Self-explanatory!]". There are a number of examples wherein works in the public domain have had copyright revived in an arbitrary manner (Article 10 of the EU Term Directive and the US Uruguay Round Agreements Act come to mind), meaning that although expiry of copyright may result in a work entering the public domain, it does not ensure that it remains there. To that extent, this category is far from self-explanatory.

Secondly "12. Use granted by the rightsholders via statutory or voluntary licencing" does not equate to the public domain. By definition, the presence of a licence (even one with no conditions attached) does not mean that copyright ceases to exist. In theory any licence can be revoked, especially if there are terms attached and these are not observed by a user (eg the CC By licence).

Hi Andy - thanks for your comments. Regarding 'category No 5' public domain, I am not suggesting (neither do the authors if I remember correctly) that this type of public domain work is not complex, but that in principle the notion of copyright having ceased to exist does not need explanation here (in comparison to other categories to which the authors point). Self-explanatory here is relative to the other categories listed, not to what it comprises.

As for voluntary or statutory licences forming a category of public domain works, the authors do explain that their (broad) definition of the public domain does not refer to works which are necessarily copyright-free, or even fee-free, but that it refers to the fact that their use can be obtained without having to negotiate to extensively with the rightsholders on an individual basis. For sure, it is a broader definition of the public domain than you would normally find, it is all explained in the intro and first chapters of the book.

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